SEPTEMBER 26, 2000

1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

2 ------------------------------x

3 CARYL B. LEVENTHAL,

4 Plaintiff,

5 v. 99 Civ. 10405 SAS

6 JANET RENO, Hon., Attorney

General of the United States,

7

Defendant.

8

------------------------------x

9

New York, N.Y.

11

Before:

12

HON. SHIRA A. SCHEINDLIN,

13

District Judge

14

APPEARANCES

15 MICHAEL R. BRESSLER

Attorney for Plaintiff

16 LILA AYERS

SHERILYN DANDRIDGE

17

MARY JO WHITE

18 United States Attorney for the

Southern District of New York

19 ERIC FISHER

SHEILA GOWAN

20 Assistant United States Attorneys

21 TRIAL

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C.

212-805-0300

14 THE COURT: Now I see that your witness is here,

15 Mr. Bressler.

16 MR. BRESSLER: Yes, your Honor. I apologize.

17 THE COURT: You were calling?

18 MR. BRESSLER: Yes, I am calling Dr. Betsy

19 Bittlingmaier.

20 THE COURT: Mr. Fisher, just be sure and point out

21 the danger.

22 MR. FISHER: Yes, I will.

23 BETSY BITTLINGMAIER,

24 called as a witness by the plaintiff,

25 having been duly sworn, testified as follows:

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Bittlingmaier - direct

1 DIRECT EXAMINATION

2 BY MR. BRESSLER:

3 Q. Good afternoon, Ms. Bittlingmaier.

4 How long have you lived at the address you just gave?

5 A. I didn't give an address.

6 Q. I'm sorry. What is your address?

7 A. 6531 Point Pleasant Pike, New Hope, Pennsylvania 18938.

8 Q. I'm sorry. OK. How long have you lived at the address

9 you just gave?

10 A. A year.

11 Q. Before that -- well, is this -- is that address you just

12 gave also your business address?

13 A. Yes, it is.

14 Q. OK. And before that -- before you moved to the address

15 you just gave, where did you reside?

16 A. 498 Fourth Street, Brooklyn, New York, and that's 11215.

17 Q. And for how long did you reside at that address?

18 A. 30 years.

19 Q. OK. And did you also have a business operation at that

20 address?

21 A. Yes, I did, yes.

22 Q. And what is your occupation or profession?

23 A. I am a psychologist.

24 Q. How long have you been practicing psychology?

25 A. Since 1973.

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Bittlingmaier - direct

1 Q. OK. What is the nature of your psychological practice at

2 this time?

3 A. It's a therapy practice. I do psychotherapy, and at this

4 time it's a small practice. I had a much larger practice in

5 Brooklyn, but when you have a private practice you don't move

6 it with you.

7 Q. Now, what was the nature of your practice other than --

8 well, while you were in Brooklyn, or, say, in 1999?

9 A. It was psychotherapy practice.

10 Q. OK. Have you ever been associated with any hospitals?

11 A. Yes, I worked for Brookdale Medical Center in Brooklyn. I

12 worked there for four and a half years, from 1979 -- whatever,

13 it was four-and-a-half years.

14 Q. OK. What is -- well, can you describe -- do you have a

15 doctorate degree?

16 A. Yes, I do.

17 Q. From where did you receive it?

18 A. From Fordham.

19 Q. And what was the subject?

20 A. Psychology.

21 Q. Have you any other degrees?

22 A. I have a Master's degree from Brooklyn College. I have a

23 BA from Nebraska Wesleyan University.

24 MR. BRESSLER: Your Honor, I ask that this witness be

25 certified as an expert in psychology.

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Bittlingmaier - direct

1 MR. FISHER: Your Honor, it was my understanding that

2 this witness was being proffered as a treating psychologist.

3 THE COURT: Yes, treating, yes. You said she is a

4 treating psychologist.

5 MR. BRESSLER: All right.

6 BY MR. BRESSLER:

7 Q. Dr. Bittlingmaier, did there come a time when you treated

8 a patient by name of Caryl Leventhal?

9 A. Yes.

10 Q. Do you know when you first saw Ms. Leventhal?

11 A. Yes.

12 Q. Professionally?

13 A. Yes. That was in April of 1999.

14 Q. And -- OK. Did you have any further sessions with

15 Ms. Leventhal?

16 A. I had ten sessions in all, ending in June -- June 23rd was

17 the last session.

18 THE COURT: '99, right?

19 THE WITNESS: '99.

20 Q. During those ten sessions, how often did you see her?

21 A. Once a week.

22 Q. And for how long each session?

23 A. 50 minutes.

24 Q. Is that your normal practice?

25 A. Yes.

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Bittlingmaier - direct

1 Q. Was there a reason you stopped treating Ms. Leventhal?

2 A. We agreed that she had showed a great deal of progress,

3 and also I was moving in August and so when I told patients

4 that I was moving, I tried to prepare them ahead of time, and

5 we agreed that this was a good time for her to terminate.

6 Q. OK. Now, what issues did you and Ms. Leventhal discuss?

7 A. The major issues that we worked on were, first of all, of

8 course, she had to give me the history of what was bothering

9 her, the reason that she came to therapy, the reason that she

10 was seeking treatment, and she went over all of her reasons

11 for seeking treatment, and we agreed that there were certain

12 goals in therapy that we would pursue.

13 May I examine my notes to --

14 MR. BRESSLER: Yes.

15 THE COURT: Do you have copies of those?

16 MR. BRESSLER: Yes.

17 MR. FISHER: Yes, your Honor.

18 THE COURT: Do you have them marked as something? I

19 mean, is there a number for the record? The notes have been

20 marked as exhibit something?

21 MR. BRESSLER: Well, I have Dr. Bittlingmaier's

22 report.

23 THE COURT: She asked to examine the notes, not her

24 report.

25 Would it be useful to examine the report, or do you

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Bittlingmaier - direct

1 need to actually look at the notes?

2 THE WITNESS: I think I could examine the report,

3 that would be better.

4 THE COURT: That would be better.

5 Tell me the numbers.

6 MR. BRESSLER: Number 64 includes the report and the

7 notes.

8 THE COURT: OK. Very good. So that, for the record,

9 the Doctor is reviewing what's been previously marked

10 Plaintiff's Exhibit 64.

11 This is the July 11, 2000, report, and then there are

12 some handwritten notes. Actually, I have only two pages of

13 handwritten notes, but that is hopefully what you are looking

14 at.

15 THE WITNESS: Right.

16 THE COURT: OK.

17 A. OK. The treatment goals that we agreed on were that we

18 would attempt to lessen her anxiety. She was suffering from

19 mild depression. We would also attempt to lessen depression,

20 and that we would attempt to increase her social contacts.

21 Q. OK. Did Ms. Leventhal discuss her employment at the

22 Immigration and Naturalization Service?

23 A. Yes, she did.

24 Q. What did she tell you about the Immigration -- about her

25 employment there?

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Bittlingmaier - direct

1 A. I have to examine the other notes for that.

2 Q. OK.

3 THE COURT: Now, the other notes, you mean the two

4 pages of handwritten notes?

5 THE WITNESS: That's right.

6 THE COURT: All right.

7 MR. BRESSLER: I could hand them up.

8 THE COURT: She has them.

9 MR. BRESSLER: All right.

10 A. OK. She said that -- that the -- she had worked for the

11 INS and that she was fired, and that she was very upset about

12 that, that she had been fired at a time when she was ill, and

13 that they had not answered her phone calls when she called

14 them to tell them that she was ill, that they had refused to

15 accept her phone calls, and that they fired her knowing that

16 she was ill with multiple sclerosis, and that she had been

17 very upset by that, that she felt that she had been

18 persecuted. It was her perception that she had been

19 persecuted while she was an employee of INS. And that since

20 being fired she was very anxious and upset, that she had bad

21 nightmares about INS, and that she had been very anxious,

22 tense and stressed since the time that she had been fired.

23 Q. Did she mention anything other than what you just

24 mentioned about being discriminated against?

25 A. Yes. She said that she had been discriminated against,

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Bittlingmaier - direct

1 that she had been discriminated against because she wished to

2 live her life as a Jewish woman. And the instance that she

3 gave me was that they didn't allow her to take Yom Kippur off

4 when they allowed a lead clerk who was Catholic to take that

5 day off, and she said that there were other instances in which

6 she felt that they discriminated against her and that there

7 were anti-Semitism in the office that she was employed in.

8 Q. OK. Did you formulate a diagnosis for Ms. Leventhal?

9 A. Yes, I did. That would be generalized anxiety disorder.

10 Q. OK. What in your professional opinion was the source or

11 sources of Ms. Leventhal's stress disorder?

12 A. I think that there were two primary sources, one being her

13 illness, the multiple sclerosis, and the other being the fact

14 that she had been terminated by INS.

15 Q. OK. So in your professional opinion, the conditions of

16 Ms. Leventhal's employment at INS and her termination resulted

17 in acute stress disorder?

18 MR. FISHER: Objection. It mischaracterizes the

19 testimony and leading.

20 THE COURT: Sustained.

21 BY MR. BRESSLER:

22 Q. OK. Would you -- well, do you believe the stress disorder

23 was caused at least in part --

24 THE COURT: Well, why don't you not lead. Ask her

25 what in her professional -- in your professional opinion, what

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Bittlingmaier - direct

1 caused her stress disorder?

2 THE WITNESS: I believe that it was certainly -- I

3 had no direct knowledge of what happened, but certainly it was

4 her perception of her treatment at INS that contributed

5 substantially to her anxiety and stress.

6 BY MR. BRESSLER:

7 Q. OK. In what ways did this stress disorder manifest itself

8 in Ms. Leventhal?

9 A. It manifested itself in she was constantly tired. She had

10 little energy. She had a sleep disorder. She was extremely

11 nervous and agitated -- there was a great deal of agitation.

12 She had -- she complained of fatigue. She showed all of the

13 general symptoms that you expect to see, which you can see in

14 body language, basically, of someone who is very stressed and

15 very tense.

16 Q. OK. You testified that Ms. Leventhal complained about

17 having nightmares.

18 A. Yes.

19 Q. Do you recall the nature of those nightmares?

20 A. They were concerned about her employment at INS, that

21 she -- in her nightmares, that she was working -- back working

22 there and was being mistreated.

23 Q. OK. Did there come a time in connection with this case

24 that you reduced to writing your view about Ms. Leventhal's

25 treatment and condition?

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Bittlingmaier - direct

1 A. What I was trying to do basically was to change her focus

2 and get her to focus on other things.

3 The focus of the therapy was to have her let go of

4 some of the obsessive thoughts about the past and to focus on

5 change. So that I was -- after the initial intake interview,

6 where I listen in detail to her perceptions, the focus of our

7 therapy was not on her experience at INS.

8 Q. OK. I would like to show you what has been marked as

9 Plaintiff's Exhibit 64, Brenda.

10 MR. FISHER: Your Honor, unless this document is

11 being used to refresh recollection, we object on hearsay

12 grounds.

13 THE COURT: I'm sorry, what document did you show

14 her?

15 THE WITNESS: It is a letter that I sent that both

16 attorneys have.

17 THE COURT: Right. But were you showing it to her to

18 refresh her recollection on this subject?

19 MR. BRESSLER: Well, actually, I wasn't.

20 THE COURT: All right. Then there is no basis for

21 her looking at it.

22 MR. BRESSLER: OK. I think she testified to that.

23 BY MR. BRESSLER:

24 Q. Dr. Bittlingmaier, do you believe that Ms. Leventhal

25 suffers from delusions of any kind?

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Bittlingmaier - direct

1 A. No, she had no evidence of it.

2 Q. Do you have any reason to believe that Ms. Leventhal

3 imagines events that never occurred and thinks they did occur?

4 A. No.

5 Q. OK. Do you have any reason to believe that during the

6 time you treated Ms. Leventhal, that she was faking her

7 condition or --

8 A. Absolutely not.

9 Q. OK. Dr. Bittlingmaier, in your professional opinion, did

10 Ms. Leventhal suffer psychological damages as a result of her

11 employment conditions and termination from INS?

12 MR. FISHER: Objection. Dr. Bittlingmaier is not

13 here as an expert.

14 THE COURT: I understand. That was her diagnosis. I

15 would rephrase the question to say "as reported to you."

16 Q. As reported to you?

17 THE COURT: Yes. Given her reported conditions at

18 INS, do you attribute that as a causal factor in her

19 condition?

20 THE WITNESS: Yes, I do.

21 (Continued on next page)

22

23

24

25

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Bittlingmaier - direct

1 Q. What would you, if you can, what would you say the nature

2 of those damages are?

3 A. Well, the nature of the damage was that she was very

4 anxious and very tense, and highly stressed, she had

5 nightmares, that she was very unhappy and slightly depressed.

6 Q. Now, in your experience, did the symptoms that you just

7 described, does that go beyond the normal job stress that a

8 person may encounter in your treatment?

9 MR. FISHER: Objection.

10 THE COURT: I don't really understand your question.

11 Are you saying as described by the patient, was that a

12 different type of job stress than reported by other patients

13 over the years?

14 MR. BRESSLER: Right.

15 A. Okay, yes.

16 Q. Yes. I'm asking -- your diagnosis, would you say that's

17 beyond what's attributable to normal job-related stress?

18 THE COURT: I'm sorry. I don't understand the

19 question.

20 MR. BRESSLER: Okay. I have nothing further.

21 THE COURT: Who is cross-examining this witness?

22 MR. FISHER: I am, your Honor.

23 THE COURT: All right, Mr. Fisher.

24 (Continued on next page)

25

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Bittlingmaier - cross

1 CROSS-EXAMINATION

2 BY MR. FISHER:

3 Q. Dr. Bittlingmaier, aside from what Mr. and Mrs. Leventhal

4 told you, you don't have any independent knowledge of how she

5 was treated at the INS, right?

6 A. That's true.

7 Q. And the first time that you examined her was almost three

8 years after she was terminated?

9 A. I presume that you're correct there. I don't have the

10 date of her termination. I probably do have the date of her

11 termination -- yes, 1996. You're correct.

12 Q. And during the course of her treatment, you set increasing

13 Mrs. Leventhal's social contacts as one of the goals of

14 therapy, is that right?

15 A. That's correct.

16 Q. And that's because her socialization worsens her

17 depression, is that correct?

18 A. That's true.

19 Q. During your ten sessions with Mrs. Leventhal, she

20 accomplished the goals that you set for her therapy, right?

21 A. To a large extent. Not completely, but to a large extent.

22 Q. And Mrs. Leventhal told you that she felt very comfortable

23 with what she had achieved?

24 A. Yes. We agreed that she achieved a substantial

25 improvement in mood and her anxiety had been lessened.

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Bittlingmaier - cross

1 Q. And in your view, she had made excellent progress?

2 A. Yes.

3 Q. During the course of your treatment, you diagnosed certain

4 mild compulsive tendencies, right?

5 A. Yes.

6 Q. And that related to her persistent thoughts about her

7 treatment at the INS, correct?

8 A. That's true, yes.

9 Q. When a person has multiple sclerosis, he or she generally

10 experiences some mild depression.

11 A. That's true.

12 Q. You told us that you left your New York practice and you

13 now practice in Pennsylvania. When you left your New York

14 practice, you recommended that certain patients continue their

15 treatment with other psychologists, right?

16 MR. BRESSLER: Objection.

17 THE COURT: Overruled. You can answer that.

18 A. If I felt that the condition was really severe, I urged

19 them very strongly to continue treatment. For most people, I

20 left it to their own decision. I think it's a consumer

21 decision, whether you want more therapy or not.

22 Q. And in the case of Mrs. Leventhal, you did not urge her to

23 continue?

24 A. I did not feel that it was essential that she continue,

25 no.

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M. Leventhal - direct

1 MR. FISHER: If I could have a moment, your Honor?

2 THE COURT: Certainly.

3 (Pause)

4 MR. FISHER: I have nothing further, your Honor.

5 THE COURT: Thank you.

6 MR. BRESSLER: I have nothing further.

7 THE COURT: All right. Thank you. Thanks for coming

8 from Pennsylvania on this grey rainy day.

9 (Witness excused)

Commentary and Editor's Notes written and Copyright © by:  LTC Michael G. Leventhal

Copyright 2000  Reproduction with written permission.  Contact: Michael @Justice-Denied.net